Recent Equality Tribunal Decisions

Each month we look at and review the decisions from the Equality Tribunal. This provides a valuable insight into the types of discrimination cases before the Tribunal and the decisions that are issued.

Grounds / Issues:Employment Equality Acts 1998- 2011 – sections 77– Time limits – Jurisdiction – Complaint properly before Tribunal.DEC-E2014-018:An Individual -v- A Company. Grounds/Issues: Employment Equality Acts 1998-2011, Section 6(1) - Less favourable treatment, Section 6(2)(a)(f) – Gender and Age, Section 8(1) – Access to employment , Burden of proof - Section 85A , no prima facie case. DEC-E2014-020: An Individual -v- A Company. Grounds/Issues: Employment Equality Acts – Failure to Attend – Unreasonable.Adare Human Resource Management CommentaryCase Law from the Equality Tribunal always provides a useful reminder to Employers of the appropriate procedures that they should have in place in order to defend themselves against claims of discriminatory treatment under the Employment Equality Acts. In March, there was one successful claim leading to an arrears of pay being awarded. The remaining five claims were not upheld. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Equal Pay, Access to Employment, Re-and Terms and Conditions of Employment. We have highlighted two specific decisions in March of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts. Conditions of Employment - Equal PayEmployment Equality Decision Upheld or Partly Upheld:DEC-E2014-014: Mieczyslaw Marzec -v- Billy Purcell Plant Hire Limited (in liquidation).Grounds / Issues: Employment Equality Acts, 1998-2008, Sections 6 and 8 – Race & Age – Conditions of Employment - Equal Pay. Award: Arrears of pay. In the case of Mieczyslaw Marzec -v- Billy Purcell Plant Hire Limited,the Tribunal in awarding the Complainant arrears of pay found that the Respondent discriminated against the Complainant on the grounds of race contrary to the Employment Equality Acts.The Complainant was a Polish national and was employed by the Respondent from November 2007 until February 2011. He earned €500 per week with the Respondent. He was not provided with a job description or given a job title but stated that he was part of a team of three who dug trenches and manholes for laying cables and telephone boxes.The Complainant submitted that he was paid €545 gross per week, as was a Polish colleague who was on the same team. One of the named comparators (comparator A) was the third member of the team. He was Irish and paid €772 gross per week. The Complainant submitted that he was treated worse than employees of other nationalities and that he was paid less than two other named Irish employees.Neither the Respondent nor the Liquidator made a submission to the Equality Tribunal before the hearing.At the hearing, the Complainant further submitted that all three members of the team carried out “like” work. Upon request, the Liquidator provided information after the hearing which included a statement from a Director of the Respondent. This information stated that the Complainant was paid €600 per week gross. In response, the Complainant submitted a P60 for 2009 which indicated a gross weekly pay of €556 and a P45 issued in December 2010 which indicated a gross weekly wage of €545. The Complainant also provided a bank statement showing he was paid €500 net into his bank account. The statement from the Director also indicated that comparator A was paid between €607 and €830 per week gross at different times.Initially the Respondent contended that all three members of the team were carrying out like work but that the Complainant was employed as a General Operative who had no certificates or qualifications to operate machinery unlike his colleagues. Subsequently however, it was accepted by the Respondent that all three members of the team worked equally and essentially were answerable to another person on whichever site they were working on.The Equality Officer accepted the Complainant’s evidence that the team of three carried out similar duties in relation to the digging, even if one of the named comparators was the only one who held certificates to operate the machinery concerned.Therefore it found that the Complainant was employed to perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Employment Equality Acts and found that there were no objective grounds other than race for the difference in pay and that the Complainant had been discriminated against by the Respondent.As compensation, the Respondent was ordered to pay to the Complainant arrears of pay being the difference between the Complainant's gross pay and the gross pay of comparator A, from three years before the claim was made, March 2008, until the Complainant left the Respondent's employment in February 2011, in accordance with the section 82(1)(a) of the Employment Equality Acts.The Employment Equality legislation requires that persons are paid equal pay for undertaking like work. Essentially, where two persons are involved in the same work, or work of equal value, they should not be paid different rates based on any of the nine grounds, e.g. because one is of one Irish Nationality and the other is of another European nationality. However, differences in pay may be justified on other objective grounds, such as skills, knowledge, experience and performance in the role. In line with all Equality Tribunal Hearings, the burden of proof initially lies with the claimant, who is required to present facts from which discrimination may be inferred. Once there is an inference of discrimination, the burden of proof shifts to the Respondent. The Respondent is required to demonstrate either that the discrimination did not occur, or that reasonable steps were taken to prevent its occurrence. Access to Employment - Determination of Job RequirementsEmployment Equality Decision Not Upheld:DEC-E2014-018: Seamus Quinlan-v- The Cleaning Corporation Grounds/Issues: Employment Equality Acts 1998-2011, Section 6(1) - Less favourable treatment, Section 6(2)(a)(f) – Gender and Age, Section 8(1) – Access to employment , Burden of proof - Section 85A , no prima facie case. In the caseSeamus Quinlan –v- The Cleaning Corporation,the dispute concerned a claim by the Complainant that he was discriminated against by the Respondent on the grounds of gender and age, in relation to access to employment.The Complainant stated that he had worked as a cleaner for over 20 years and submitted that from 2003 onwards he regularly applied for cleaning jobs with the Respondent. On the first 3 occasions he applied for a cleaning job he was requested to send in his CV, but he heard nothing further from the Respondent.The Complainant submitted that there was a general policy of discrimination on the gender ground and in support of this he stated that he noticed that when he passed through the airport all of the Respondent’s cleaners were female. However, when his wife telephoned pretending she was looking for the job she was given an interview despite not having any previous cleaning experience. The Complainant outlined a number of times he telephoned seeking an interview and on each occasion he was unsuccessful. In response, he Respondent denied that there was any policy in place to employ only female cleaners and submitted that 4 out of the 10 cleaners employed on the specific Airport contract referred to by the Complainant were male. It was also submitted by the Respondent that the company had other cleaning contracts and employed a total of 50 people, representing a good mix of both male and female employees.The Respondent further outlined specific requirements for the Airport contract due to the security restrictions and clearance required for staff to work there. One of these requirements included flexibility so that staff who obtained security clearance could do a shift at very short notice. In relation to the last application referred to by the Complainant the Tribunal noted from the Complainant’s own evidence and submission to the Tribunal that he worked in the VEC (a previous employer) for 5 evenings per week and in his submission when referring to previous applications made, he stated he was seeking early morning shifts and weekend shifts from the Respondent. Furthermore, the Tribunal noted that the Respondent had advised that they did not select the Complainant for interview because he could not do a shift at short notice and that the Complainant did not make the Respondent aware he intended giving up the VEC job if he was successful with an application.The Equality Officer was satisfied that the Complainant was not selected for interview because he did not meet the flexibility criterion required by the Respondent. It was further noted that the Respondent employed both male and female cleaners on the airport contract and furthermore the Complainant was called for interview by the Respondent for a cleaning position for another position. The Equality Officer was therefore satisfied that the Respondent did not have a policy of employing only female staff and that the Complainant had failed to establish a prima facie case of discriminatory treatment on the gender ground.In relation to the discrimination in relation to age, the Equality Officer found that there was no evidence to support the Complainant’s claim that the Respondent only recruited younger applicants. The Complainant was is in the 50 to 60 age group and the Respondent demonstrated that they had 4 employees in this age group and 2 in the higher age group. Therefore the Complainant had failed to demonstrate preliminary grounds of discrimination on the grounds of age in relation to access to employment.This case serves as a useful reminder that planning and preparation are valuable tools as part of a successful recruitment and selection process. Employee recruitment is potentially a very subjective process and unless steps are taken to reduce the element of subjectivity, it increases the likelihood of poor recruitment decisions being made based solely on the application stage or how candidates have come across during the interview process. A well-crafted job description also aids the selection process by:

Outlining the relevant criteria against which candidates can be measured and which can be justified in accordance with relevant legislation

Providing valuable information to ensure that selection techniques and tools are customised to reflect the requirements of the job

Generating good quality information which will help assessors to make better hiring decisions.

__________________________________________________________________________________The Employment Equality Acts 1998 to 2012, outlawdiscriminationin work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involvingharassmentandvictimisationat work are also covered by the Acts.Employees or Ex-Employees who feel they have been discriminated against may refer a complaint toThe Equality Tribunalthrough Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include

Equality and Diversity Audit and Healthcheck

Review and Development of Policies and Procedures -Dignity at Work, Anti-Harassment and Sexual Harassment